DONALD C WRIGHT V ELMER CRAIN
Annotate this Case
Download PDF
STATE OF MICHIGAN
COURT OF APPEALS
DONALD C. WRIGHT,
UNPUBLISHED
May 18, 1999
Plaintiff-Appellee/Cross-Appellant,
v
No. 205861
Charlevoix Circuit Court
LC No. 96-075818 CH
ELMER CRAIN and CLARA CRAIN,
Defendants-Appellants/CrossAppellees.
Before: McDonald, P.J., and Sawyer and Collins, JJ.
PER CURIAM.
Defendants appeal as of right from the trial court’s order granting plaintiff’s motion for summary
disposition pursuant to MCR 2.116(C)(10). Plaintiff cross-appeals the trial court’s refusal to award
him costs and attorney fees. We reverse the trial court’s order granting summary disposition to plaintiff
and remand, and we affirm the trial court’s denial of costs and attorney fees.
I
This case involves an action to quiet title to a stretch of real property located in Boyne Valley
Township, Charlevoix County. The subject property consists of a portion of land formerly used as a
railroad right-of-way that extends through and is surrounded by two forty-acre parcels of property
owned by plaintiff. Each forty-acre parcel has been the subject of numerous conveyances to various
landowners since 1876, when the United States first issued a patent to properties to Enoch K.
Robinson.
The railroad that ran through the property in question was c
onstructed in 1883 for service
primarily between Boyne City and Boyne Falls. The property was used as a railway by four railroad
companies until 1979 or 1980, at which time the railroad was disbanded by the Boyne Valley Railroad
Company for economic reasons. The railroad was apparently officially abandoned in 1982, when the
tracks and ties were liquidated for scrap.
-1
In 1985, defendants purchased the entire stretch of railroad right-of-way extending from Boyne
City to Boyne Falls, which included the disputed portion across plaintiff’s property, from the personal
representatives of the estate of Dennis R. Caughey. Defendant received a quitclaim deed reflecting title
to the property, which was recorded on August 5, 1985.1 The estate of Dennis Caughey had
purchased the right-of-way from the Boyne Valley Railroad Company, the last company to operate the
railroad. The estate subsequently received a warranty deed, which was recorded on September 16,
1982.
Defendants paid the overdue taxes on the property and received two tax deeds dated August
25 and November 9, 1987 (the latter deed simply correcting the land description on the former deed)
from the State of Michigan to a “Main-line right-of-way” through Section 6 of Boyne Valley Township.2
The language of conveyance provides:
The First Party [Department of Natural Resources] acting for and in behalf of the State
of Michigan by authority of Section 131e, Act 206 P.A. 1893, as amended, hereby
grants, conveys, releases and quit-claims unto Second Party [Elmer Crain and Clara
Crain], and to the Second Party’s heirs, successors, and assigns, all the right, title, and
interest acquired by the State of Michigan . . . .
The deed also indicates that title to the described property had previously vested in the State of
Michigan when the property was “sold and bid in to the State of Michigan at the 1985 tax sale.”
In 1990, plaintiff purchased the northwest quarter parcel through which the railroad bed
extends. Plaintiff received a warranty deed, which was recorded on April 10, 1990. In 1992, plaintiff
purchased the adjoining northeast quarter parcel. The warranty deed reflecting plaintiff’s interest was
recorded on November 8, 1996. The original warranty deeds state:
EXCEPTING THEREFROM the main line railroad right of way as now laid out and
used established and constructed across section 6, Town 32 North, Range 5 West
including any buildings thereon.
On December 5, 1996, plaintiff obtained and filed new deeds to the same parcels. The new quitclaim
deeds omitted the above cited language.
When plaintiff began placing cut trees on the railroad right-of-way that ran through the two
forty-acre parcels, defendant objected and claimed title to the railroad right-of-way. Plaintiff then filed
this lawsuit to quiet title, supporting his claim with a “statement of title” listing eighty-two conveyances.
Thereafter, plaintiff filed a motion for summary disposition pursuant to MCR 2.116(C)(10),
arguing that no genuine issues of material fact existed regarding whether plaintiff held fee simple title to
the disputed portion of the abandoned railroad bed. Plaintiff maintained that the evidence showed an
unbroken chain of title to him, and that defendants failed to produce any documentation establishing
otherwise. Therefore, argued plaintiff, the railroad companies acted without title regarding the subject
-2
property, gained no property rights to the subject property and, at best, acquired prescriptive rights
which were never enforced.
Plaintiff also asserted that defendants could not claim title to the property through the 1987 tax
deeds they received from the State of Michigan because those deeds were only redemption deeds,
which simply returned title to the party possessing title prior to the tax foreclosure, and were not deeds
conveying a fee interest which would commence a new chain of title. Since defendants did not have an
interest in the subject property prior to the ineffective deed from the Caughey estate in 1985, defendants
had no interest of any kind by which they could redeem the premises by tax foreclosure.
Defendants argued in response that, irrespective of defendants’ valid claims of interest in the
property, there were numerous imperfections in plaintiff’s claim of title that raised questions of fact
concerning plaintiff’s claim of right. Defendants also argued that they had a valid claim to the property
via the 1985 deed from the Caughey estate and through the 1987 tax deed they received from the State
of Michigan.
The trial court granted plaintiff’s motion with regard to the tax deed issue, and denied the motion
in part without prejudice to allow the court the opportunity to review new deeds submitted by
defendants and to allow defendants the opportunity to provide additional documents to support their
chain of title. Specifically, the Court held:
I think that the particular type of tax deed under Michigan Compiled Laws
211.141 does not convey any greater title to Mr. Crain than what he had by way of
acquisition through these deeds [the three new deeds submitted by defendant] and
through this deed from the [Caughey] estate, because that statute provides that a
quitclaim deed or reconveyance made under this section shall not vest in the grantee,
title or interest in the land beyond that already owned by the grantee.
And so if Mr. Crain had good title, he redeemed it, and by paying the back
taxes on it then, that clears up that title.
On the other hand, if he didn’t have marketable title to the property, for
whatever reason, by simply purchasing or redeeming the taxes and getting that type of
deed, does not create any greater title in him than what he had before he paid those
back taxes.
So I don’t think he can prevail by virtue of the quitclaim deed, the limited
quitclaim deed from the State of Michigan.
Defendants responded with a trial brief in which they traced their interest in the property from
the Caughey estate to a conveyance from the Boyne City and Southeastern Railroad to the Boyne City,
Gaylord and Alpena Railroad in 1936. Defendants explained that they were unable to produce
evidence of an initial deed or interest respecting plaintiff’s property because certain libers at the register
of deeds were destroyed in an 1887 fire.3
-3
The trial court then entered an order granting plaintiff’s motion for summary disposition in full.
The order stated that defendants failed to present additional documents to support their chain of title and
that the deeds attached to defendants’ motion for summary disposition did not relate to plaintiff’s
property.
II
On appeal, defendants argue that the trial court erred in ruling that they did not acquire a vested
interest in the subject property through 1981 and 1987 state tax deeds and in concluding, therefore, that
there existed no genuine issue of material fact with regard to the parties’ opposing claims of title.4 We
review the trial court’s grant of summary disposition de novo. Pinckney Schools v Continental
Casualty Co, 213 Mich App 521, 525; 540 NW2d 748 (1995). In reviewing a motion for summary
disposition brought pursuant to MCR 2.116(C)(10), a trial court must consider affidavits, pleadings,
depositions, admissions, and documentary evidence presented by the parties in the light most favorable
to the party opposing the motion. Quinto v Cross & Peters, 451 Mich 358, 362; 547 NW2d 314
(1996). The trial court may grant the motion only if the affidavits or other documentary evidence show
that there is no genuine issue with respect to any material fact, and the moving party is entitled to
judgment as a matter of law. Id. Before summary disposition may be granted, the court must be
satisfied that it is impossible for the claim or defense asserted to be supported by evidence at trial. SSC
Associates Ltd. Partnership v Detroit Retirement System, 192 Mich App 360, 365; 480 NW2d
275 (1991).
III
We agree with the trial court that defendants did not acquire absolute title to the property in
question through purchase or redemption of state tax deeds. Defendants correctly state that once lands
subject to a tax sale are bid off to the state, the state subsequently becomes vested with absolute title
when the owner of the property has failed to redeem the property during the statutory redemption
period provided by MCL 211.74; MSA 7.120. See MCL 211.70; MSA 7.115; MCL 211.67; MSA
7.112; City of Flint v Tackacs, 181 Mich App 732, 736; 449 NW2d 699 (1989). However,
defendants cite no authority and have produced no facts to establish their conclusory claim that the state
acquired absolute title. Defendants have not shown that the owners of the property related to the 1987
or 1981 tax deeds failed to redeem the property before the expiration of the statutory period of
redemption such that absolute title vested in the state. A party may not merely announce a position on
appeal and leave it to the appellate court to discover and rationalize the basis for the claim. Morris v
Allstate Ins Co, 230 Mich App 361, 370; 584 NW2d 340 (1998); Great Lakes Division of
National Steel Corp v Ecorse, 227 Mich App 379, 422; 576 NW2d 667 (1998).
Moreover, defendants incorrectly rely exclusively on MCL 211.72; MSA 7.117 of the General
Property Tax Act, MCL 211.1 et seq.; MSA 7.1 et seq., to support their contention that once the state
acquired absolute title for failure to redeem the property before the expiration of the statutory
redemption period, they received absolute title to the disputed property from the state through tax
deeds. MCL 211.72; MSA 7.117 sets forth the rights and title acquired by tax deed purchasers once
lands subject to a tax sale are bid off to the state and the state subsequently becomes vested with
-4
absolute title after the expiration of the redemption period provided by MCL 211.74; MSA 7.120. See
MCL 211.70; MSA 7.115; MCL 211.67; MSA 7.112; City of Flint, supra at 736. MCL 211.72;
MSA 7.117 provides in pertinent part:
Upon presentation of the purchaser’s certificate of sale prescribed by section
71 to the state treasurer of his or her authorized representative after the expiration of
time provided by law for the redemption of lands sold for the nonpayment of
taxes, the state treasurer shall cause a tax deed of conveyance of the land described in
the certificate of sale to be executed and delivered to the purchaser, or his or her heirs
or assigns, unless the sale was redeemed or annulled as provided by law. The tax
deed of conveyance shall be sealed with the seal of the state treasurer and be signed by
the state treasurer or his or her authorized representative but additional signatures of
witnesses or a notary public are not required. The tax deed may be recorded in the
office of the register of deeds of the proper county in the same manner and with like
effect as other deeds duly witnessed, acknowledged, and certified. The tax deeds
convey an absolute title to the land sold, and constitute conclusive evidence of
title, in fee, in the grantee, subject, however, to all taxes assessed and levied on
the land subsequent to the taxes for which the land was bid off. [Emphasis added.]
By its terms, MCL 211.72; MSA 7.117 addresses the rights and title acquired by purchasers from the
state following a tax sale of the subject property. See Ottaco, Inc v Gauze, 226 Mich App 646, 652;
574 NW2d 393 (1997) (MCL 211.72; MSA 7.117 addresses tax deed issued by the state to a “tax
sale purchaser”); see also MCL 211.70; MSA 7.115 to MCL 211.73c; MSA 7.119(2) (the section of
the General Tax Act pertaining to sale of property by county treasurer to buyers at a tax sale). Pursuant
to this section, the state treasurer will issue a tax deed of conveyance after: (1) the statutory period
allotted for the owner to redeem the property has expired and (2) the tax sale purchaser has presented
the treasurer with a “purchaser’s certificate of sale” prescribed by MCL 211.71; MSA 7.116.5 Upon
such a conveyance, the tax purchaser receives absolute title to the property described in the purchaser’s
certificate, which destroys and cuts off all previous liens and encumbrances. Ottaco, supra at 652,
citing Robbins v Barron, 32 Mich 36, 39 (1875). Persons holding a state tax deed of land executed
for the nonpayment of taxes may commence an action in the circuit court of the county where the land is
located to quiet title to the land. MCL 211.72; MSA 7.117.
Even assuming that absolute title vested in the state due to the owners’ failure to redeem the
property before the expiration of the statutory period, title did not pass to defendants pursuant to MCL
211.72; MSA 7.117. That statute does not apply under the facts presented in this case. First,
defendants presented no documentary evidence showing that they acquired the 1987 tax deeds
pursuant to a tax sale. At the hearing on plaintiff’s motion, plaintiff asserted, and defendants did not
contest, that defendants paid the back taxes through the county treasurer’s office and not pursuant to a
tax sale. Similarly, defendants have presented no evidence whatsoever to establish the manner in which
the 1981 tax deed appearing in the chain of title from the Caughey deed and argued for the first time on
appeal, was acquired. Secondly, defendants have likewise failed to produce evidence of a “purchaser’s
certificate of sale” complying with the requirements and description of such a certificate as set forth in
-5
MCL 211.71; MSA 7.116. Finally, at least with respect to the 1987 tax deeds, defendants appeared
as the record title holder of the property pursuant to the deed from the Caughey estate. The purpose of
the tax sale is for sale to third parties, not the title holder of record. Therefore, contrary to defendants’
contention, the statute does not apply to create a genuine issue of material fact regarding defendants’
claim of title to the disputed property.
Having determined that defendants did not acquire absolute title to the disputed property
through the state tax deeds pursuant to MCL 211.72; MSA 7.117, we agree with the trial court’s
determination that defendants’ tax deeds were redemption deeds which did not vest absolute title in
defendants.
The tax deeds defendants received from the state indicate that they were executed pursuant to
Section 131e of Act 206, Public Acts 1893, as amended. MCL 211.131e(3); MSA 7.190(3)(3)
provides that, “[a] redemption deed pursuant to this section shall reinstate title as provided in section
131c(4).” MCL 211.131c(4); MSA 7.190(1)(4) states in relevant part:
A redemption deed issued pursuant to this section shall not be construed to vest
in the grantee named in the deed any title or interest in the lands beyond that which he or
she should have owned, had not title become vested in the state . . . . 6
Similar language is set forth in MCL 211.141; MSA 7.199. That section applies in the situation where
a tax purchaser must give a quitclaim deed to the owner conveying the interests acquired under the tax
deed where the owner has redeemed the property. MCL 211.141(4); MSA 7.199(4) provides:
A quitclaim deed or reconveyance made under this section does not vest in the grantee
title or interest in the property beyond that already owned by the grantee . . . .7
A redemption deed is issued upon establishing proof that the redeemer is the title holder of
record. See MCL 211.74; MSA 7.120. The county treasurer is not charged with examining the
quantum or quality of title, but is only charged with issuing a certificate of redemption.
In the present case, defendants’ chain of title indicates that they received the deed from the
Caughey estate in 1985. Therefore, at the time defendants went to the county treasurer’s office to pay
the back taxes on the property, they appeared as the title holder of record and were subsequently
issued tax deeds. The state, however, did not convey absolute title, but simply returned to defendants
the quantum of title they held before the state acquired the property. If defendants did not possess
absolute title to the property in question prior to paying the back taxes on that property, they did not
possess it after paying the taxes. By arguing that they obtained absolute title through the tax deeds,
defendants are attempting to equate themselves with the status of a third-party tax purchaser rather than
the status of a tax redeemer.
IV
However, notwithstanding defendants’ failure to prove that they acquired absolute title to the
land in question through state tax deeds, we find that summary disposition in favor of plaintiff was
-6
inappropriate, because there remained genuine issues of material fact regarding whether plaintiff had
clear title to the land in question, and regarding whether defendants could prove superior title via another
route.
In an action to quiet title, the plaintiff has the burden of proving clear title to the property at
issue; only after plaintiff has made a prima facie case does the burden of showing superior title shift to
the defendant. Ingle v Musgrave, 159 Mich App 356, 361; 406 NW2d 492 (1987). In this case,
plaintiff’s documentary evidence of his claim to the property in question, supported by his affidavit
indicating that he had researched the history of the property, consisted of a “statement of title” listing
eighty-two conveyances, culminating in plaintiff. The purpose of documentary evidence offered with a
motion for summary disposition brought pursuant to MCR 2.116(C)(10) is to help the court determine
whether an issue of fact exists. SSC Associates, supra at 364. The documentary evidence does not
resolve issues of fact. Id.
As defendants argued in opposing plaintiff’s motion for summary disposition, plaintiff’s
“statement of title” does not establish the absence of factual issues with respect to ownership of the
property in question. It appears that plaintiff’s statement of title was compiled and prepared by plaintiff
himself; there is no indication whatsoever that the document is authentic or represents a true copy from
the register of deeds. Where the truth of a material factual assertion depends on the credibility of the
person making the assertion, there exists a genuine issue to be decided at trial by the trier of fact and a
motion for summary disposition cannot be granted. Id. Furthermore, although plaintiff asserts that the
“statement of title” establishes his chains of title to both parcels in question, the statement consists only
of one listing without any mechanism for determining which individual listing pertains to each parcel.
Moreover, the separate listings refer to the transactions or conveyances in very broad terms such as
“deed.” Thus, it is unclear exactly what interests, if any, were conveyed with each transaction and
plaintiff did not provide those documents to the trial court. Finally, by plaintiff’s own admission, the
statement is confusing because it includes conveyances to property other than property involved in the
present matter, without specifying these conveyances. Therefore, we find that plaintiff’s “statement of
title” was not sufficient to establish that he had clear title to the property in question such that summary
disposition in his favor could properly be granted.
In addition, the trial court stated that it based its decision to grant plaintiff summary disposition,
in part, on the fact that defendants were unable to submit, as part of their chain of title, evidence of a
deed of conveyance from any of plaintiff’s predecessors in interest to one of the four railroad companies
that operated the railroad from 1883 to 1979 or 1980. However, the trial court essentially ignored
defendants’ argument that, although they were able to trace their chain of title to 1936, a letter from the
Charlevoix Register of Deeds indicated that several early libers had been destroyed in an 1887 fire and
the missing deed from plaintiff’s predecessors to the railroad company may have been included in those
destroyed. The trial court also appeared to ignore the logical proposition advanced by defendants that,
because it was undisputed that every railroad involved made active use of the land traversing plaintiff’s
property and that every other parcel of land between Boyne City and Boyne Falls upon which the
railroad operated was encumbered by a deed or easement to the railroads, the same was done with
respect to plaintiff’s parcels. Giving the benefit of reasonable doubt to defendants, we conclude that
-7
evidence of the fire at the register of deeds coupled with the illogical position that every other part of the
railroad was encumbered except plaintiff’s property raises a genuine issue of material fact as to whether
defendants could trace their title to a conveyance from plaintiff’s predecessors to one of the railroad
companies.
Accordingly, because there remained genuine issues of material fact regarding the parties’
opposing claims of title to the property in question, we find that the trial court erred in granting summary
disposition to plaintiff.
V
On cross-appeal, plaintiff argues that the trial court clearly erred in finding that defendants’
defense to plaintiff’s claim of title was not frivolous and abused its discretion in denying his motion for
attorney fees pursuant to MCR 2.114(D) and MCL 600.2591; MSA 27A.2591. However, in light of
our finding that the trial court erred in granting summary disposition to plaintiff, we conclude that the trial
court did not abuse its discretion in denying plaintiff’s motion for costs and attorney fees.
We affirm the trial court’s denial of costs and attorney fees, and we reverse the trial court’s
order granting summary disposition to plaintiff and remand for proceedings consistent with this opinion.
We do not retain jurisdiction.
/s/ Gary R. McDonald
/s/ David H. Sawyer
/s/ Jeffrey G. Collins
1
It is not clear from the record how much of the right-of way defendants acquired or whether the
interest conveyed was that of an easement or fee simple title.
2
Plaintiff alleged that the railroad companies were exempt from taxes during the years of operation, that
when the railroad was abandoned in 1979 or 1980, the Charlevoix County Treasurer began assessing
taxes against the property, and that the Boyne Valley Railroad Company never paid the taxes on the
subject property.
3
Defendants attached a letter from the register of deeds in support of their assertion concerning the fire.
4
We note that defendants did not specifically argue in the trial court that they had acquired title to any
portion of the property in question via the 1981 state tax deed. However, defendants based their claim,
in part, on the deed from the Caughey estate and the chain of title extending therefrom, and the 1981 tax
deed appears in that chain of title.
5
MCL 211.71; MSA 7.116 provides:
At the sale aforesaid the respective county treasurers shall give to the purchasers, on the
payment of the bids, a separate certificate in writing for each parcel, describing the lands
-8
purchased and the amount paid therefore, the name of the person to whom the same
was issued, the number, date and amount of each certificate, and such certificate shall
be regularly numbered and entered into the book kept for that purpose and designated
as the tax record. Such certificate shall be in substantially the following form: . . . .[See
MCL 211.71; MSA 7.116 setting forth the form and language of a purchaser’s
certificate.]
6
Both MCL 211.131e(3); MSA 7.190(3)(3) and MCL 211.131c(4); MSA 7.190(1)(4) were
amended in 1993 and 1996 and contain the same language as the 1985 versions.
7
The statute was amended by 1996 PA 476 § 1. The cited language is the same as section 2 of the
1978 pre-amended version.
-9
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
